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Of Marriage, and the “Constitutions” of Nations

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Of Marriage, and the “Constitutions” of Nations The “constitution” of Marriage, and the “Constitutions” of Nations By LYNN D. WARDLE* Introduction THE “CONSTITUTION” (lower-case “c”) of a nation or political state (hereinafter “nation”) exists apart from the legal “Constitution” (up- per-case “C”) of a nation. The constitution of a nation usually is formed long before the Constitution of that nation is written or adopted. The “constitution” refers to “[t]he way in which a thing is constituted or made up . the actual existing order.”1 The “Constitu- tion” means “the system or body of fundamental principles according to which a nation, state, or body politic is constituted and governed.”2 The legal Constitution (of democratic nations, especially) generally reflects the social and normative constitution of the nation, including marriage and families. But the legal Constitution also influences the social constitution (values, principles, understandings, root para- digms, institutions, and relationships) of the society, including the in- stitutions of marriage and the family. The interrelationship and balance between marriage (the foundation of society) and legal Con- stitutions (the foundation of the legal and political order) is the focus of this article. Using both the constitution and the Constitution of the * Bruce C. Hafen Professor of Law, J. Reuben Clark Law School at Brigham Young University, Provo, UT 84604, USA. An earlier version of this paper was presented at the International Conference on Marriage & Constitution, at Bar-Ilan University Faculty of Law, Ramat-Gan, Israel. The valuable research assistance of Malisa King and Robert Selfaison, and the helpful and constructive comments and suggestions of the co- participants in the Bar-Ilan conference is gratefully acknowledged. I thank especially Professor Shahar Lifshitz for convening the symposium. 1. Constitution Definition, 1 THE NEW SHORTER OXFORD ENGLISH DICTIONARY 489 (Les- ley Brown ed., 1993). The accepted usage rule is that “generic forms are usually lower- cased,” while reference to “[f]ormal or accepted titles” of specific legal documents such as “treaties, acts . and similar documents . are capitalized,” THE CHICAGO MANUAL OF STYLE r. 8.79 (16th ed. 2010). However, to keep the distinction between formal-legal-politi- cal Constitutions and non-legal constitutive institutions that is the subject of this article, all references to all legal constitutions herein will use a capital “C.” 2. Constitution Definition, supra note 1, at 489. 437 438 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45 United States of America as an example (with some comparisons to the origins of the State of Israel and of its unwritten constitution), this article will explain why marriage is the critical cornerstone of constitu- tional democracies. It also explains why the Constitutions or basic laws of democratic nations should (and often do) extend special, unique protection to male-female (conjugal) marriage and marital families. Following a review of the role of marriage in undergirding republica- tion self-government in the understanding of the Framers of the Con- stitution, and similar views noted by the Founders of the more recent nation of Israel, the author asserts that the constitution of our nation as well as the Constitution of the nation are endangered today. The article concludes that altering the definition of marriage to include same-sex unions will damage the institution of marriage and will thus result in a weakening of the foundation upon which liberal demo- cratic societies (including American society) and their legal systems rest. I. Beliefs of the American Founders About Human Nature and Government A. The Founders Saw Government As a Reflection of Human Nature The Framers of the U.S. Constitution thought that a sound un- derstanding of human nature was necessary to create and perpetuate a successful human government.3 They grasped that the nature of gov- ernment and human nature are inextricably linked. As James Madison, the Father of the Constitution, asked: “[W]hat is govern- ment itself, but the greatest of all reflections on human nature?”4 The dilemma, as the Framers saw it, was that “man’s fallen nature . made government necessary and yet made a lasting democracy impossible.”5 The Founding Fathers had a very sober understanding of the duality of human nature, and of the need for government to deal with both the evil capacity and the good capacity of human nature. They be- lieved that “[m]an has a dual nature. His ‘passions and appetites are parts of human nature,’ but so are ‘reason and the moral sense.’”6 As 3. See infra Part I.A. 4. THE FEDERALIST No. 51, at 264 (James Madison) (Ian Shapiro ed., Yale Univ. Press 2009) (linking human nature and government). 5. Richard Vetterli & Gary Bryner, Public Virtue and the Roots of American Government, 27 BYU STUD., Summer 1987, at 29, 35. 6. Id. at 36 (quoting 6 JOHN ADAMS, THE WORKS OF JOHN ADAMS, SECOND PRESIDENT OF THE UNITED STATES, 115 (1851)). Fall 2010] THE CONSTITUTION OF MARRIAGE 439 Alexander Hamilton explained in Federalist No. 15: “Why has govern- ment been instituted at all? Because the passions of men will not con- form to the dictates of reason and justice, without constraint.”7 James Madison agreed, writing in Federalist No. 51: “If men were angels, no government would be necessary.”8 However, they also believed that man had the capacity for good, cooperation, and noble feelings and behavior. Thomas Jefferson, John Adams, and Thomas Paine were among the Founders “who believed that God had created man with the necessary qualities to live in a social environment.”9 And James Madison believed, as he wrote in Federalist No. 55: “As there is a degree of depravity in mankind which requires a certain degree of circum- spection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence.”10 Thus, Madison urged that structural precautions be incorporated into the Constitution of the United States because of the dual nature (propensity for both good and evil) of the constitution of human na- ture.11 He urged a “policy of supplying, by opposite and rival interests, the defect of better motives” as a matter of “prudence” in “the distri- bution of the supreme powers of the State.”12 Hamilton agreed by ask- ing rhetorically whether “momentary passions, and immediate interests, have a more active and imperious control over human con- duct than general or remote considerations of policy, utility, or jus- tice? . Are not [republics] administered by men as well as [monarchies]?”13 Thus, he concluded that guarantees of individual liberty “must altogether depend on public opinion, and on the gen- eral spirit of the people and of the government.”14 The eighteenth- century Founders of the American Republic understood that there was a strong, reciprocal relationship between law and the social-cul- tural constitution of society. 7. THE FEDERALIST No. 15, at 76–77 (Alexander Hamilton) (Ian Shapiro ed., Yale Univ. Press 2009). 8. THE FEDERALIST No. 51, supra note 4. 9. Vetterli & Bryner, supra note 5, at 36. 10. THE FEDERALIST No. 55, at 285 (James Madison) (Ian Shapiro ed., Yale Univ. Press 2009). 11. THE FEDERALIST No. 51, supra note 4 (“A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”). 12. Id. 13. THE FEDERALIST No. 6, at 28 (Alexander Hamilton) (Ian Shapiro ed., Yale Univ. Press 2009). 14. See THE FEDERALIST No. 84 (Alexander Hamilton) (Ian Shapiro, ed., Yale Univ. Press 2009). 440 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45 The connection between the constitution of man (and people and society) and the Constitution of law (and government) has been a part of the American constitutional context since the country’s found- ing, and it has been repeatedly confirmed for the past two centuries. “[E]very legal system implies a philosophy of law which in turn implies a general ontology.”15 Modern American scholars have noted: “Study of the problems of satisfying human wants . becomes the study of the problems of people living together in such general-interest groups, or communities. This calls, first of all, for an understanding of the conditions which make such community living possible.”16 B. The Founders of America Believed in the Social Dimension of Human Nature The Framers of the U.S. Constitution believed that relationships and associations with other human beings are very important to human welfare. The social dimension of human nature was well-un- derstood in 1787 in America, and long before then.17 Many of the greatest philosophers throughout the ages have rec- ognized and discussed the social nature of humankind.18 Aristotle de- 15. Ursula M. von Eckardt, The Philosophy of Law in Historical Perspective by Carl Joachim Friedrich, 68 YALE L.J. 1318, 1319 (1959) (book review). 16. Henry M. Hart, Jr. & Albert M. Sachs, The Legal Process: Basic Problems in the Making and Application of Law (1958) (unpublished manuscript), in THE CANON OF AMER- ICAN LEGAL THOUGHT 255, 256 (David Kennedy & William W. Fisher III, eds., 2006). [S]ubstantive understandings or arrangements about how the members of an inter- dependent community are to conduct themselves in relation to each other and to the community necessarily imply the existence of what may be called constitutive or procedural understandings or arrangements about how questions in connection with arrangements of both types are to be settled. The constitutive arrangements serve to establish and to govern the operation of regularly working—that is institu- tionalized—procedures for the settlement of questions of group concern. These institutionalized procedures and constitutive arrangements establishing and gov- erning them are obviously more fundamental that the substantive arrangements in the structure of a society, if not the realization of its ultimate aims, since they are at once the source of the substantive arrangements and the indispensable means of making them work effectively.
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